James v. State

The plaintiffs, in error were indicted, tried and convicted upon an indictment containing two counts; count one being a charge of assault and simple robbery, and count' two being a charge of assault with a deadly weapon and robbery.

The jury found “each defendant not guilty as to robbery and larceny from the person and find each guilty of assault and battery.” The plaintiffs in error, defendants below, filed a motion for a new trial in which they contended that assault and battery is not a necessary included offense under the counts of the indictment. The motion for a new trial was overruled.…